The Impact of FOPA on Executive Orders

[KeithKSR]

Back in 1986 Congress anticipated the attempts to establish a national gun registration by bypassing Congressional legislation. As a result passed the Firearms Owners Protection Act (FOPA), FOPA makes it illegal for President Obama to use an Executive Order to put in place a national gun registration.

Federal Law 18 U.S.C. 926 (a) being:

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.

[CitizenBBN]

Good find Keith.

One of the tidbits the NRA has made sure is protected each year. There's about a dozen of them and I agree they have been put there and maintained there for exactly this kind of tactic. The group has a name they call them by, can't recall it.

The registry was at the core of the Brady Bill fight, to have background checks without keeping records on who was buying what. Right now all NICS checks have to be purged (iirc within 48 hours).

He may be able to get the multi-gun stuff expanded, but it'll be a fight.

It's an insult to the nation to use executive orders for things that are clearly politically divisive issues best decided by the legislative branch. both sides of the aisle have used them when it isn't the place of the President to do so. They exist to further the President's role of enforcing the laws, not making new ones without following the legislative process.

[KeithKSR]

The only Executive Order I am aware of that has been implemented that was contrary to law was the illegal holding U.S. citizens in camps during World War II. That executive order was issued by FDR, a man every bit the socialist that Obama has proven to be.

Banning assault weapons of banning extended magazines though executive order would be in defiance of Congressional legislation, IMO. The 1994 assault weapons ban was passed by Congress and signed into law with a sunset clause of 10 years, which required reauthorization by Congress. The requirement that a ban be reauthorized by Congress could prevent such a ban from being put in place by EO.

[CitizenBBN]

I agree Keith, I think the original ban's existence and subsequent sunset provide strong basis for the case against an exec order banning assault weapons or high cap mags.

The only others I know about off the top of my head were Lincoln at the outset of the Civil War suspending Habeus Corpus and allowing for military trials in the Copperhead states like Ohio. That's a pretty extenuating circumstance and if they were ever intended to be used in more than enforcement of legislation, act of war is it.

No coincidence that both of those cases were part of an act of war. This is hardly an "inter arma enim silent leges" situation.

[KeithKSR]

I agree Keith, I think the original ban's existence and subsequent sunset provide strong basis for the case against an exec order banning assault weapons or high cap mags.

The only others I know about off the top of my head were Lincoln at the outset of the Civil War suspending Habeus Corpus and allowing for military trials in the Copperhead states like Ohio. That's a pretty extenuating circumstance and if they were ever intended to be used in more than enforcement of legislation, act of war is it.

No coincidence that both of those cases were part of an act of war. This is hardly an "inter arma enim silent leges" situation.

Lincoln's act of suspending Habeas Corpus was in keeping with Article 1, Section 9 of the U.S. Constitution which states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In addition Congress had authorized martial law, but the use of martial law was later rebuked by the Supreme Court. The Court said, "Martial law ... destroys every guarantee of the Constitution." The Court reminded the reader that such actions in part caused the Revolutionary War. "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."

SCOTUS provided guidelines for implementation of martial law, which could come into play to prevent an unscrupulous President from abusing power and declaring martial law in order to further political aspirations. SCOTUS rules that martial law is appropriate, "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."